Is it really that easy for the U.S. government to keep someone in solitary for nine months on evidence so shoddy that once the facts have to be produced, 98% of the charges get dropped? As Judge James Parker said last week, "The Executive Branch has enormous power, the abuse of which can be devastating to our citizens." And it exercises this power more often than you might think.
Last November the government was forced to release Nasser Ahmed, who had spent 3 1/2 years in jail without ever being tried or formally charged with a crime. He had been a translator for Sheik Omar Abdel-Rahman, who was convicted in 1995 of conspiring to blow up the U.N. building. The FBI claimed that Ahmed, who had been arrested in 1996 for overstaying his visa, had relayed a message from Abdel-Rahman that sparked a terrorist bombing in Egypt. As in the case of Wen Ho Lee, Ahmed was held without being shown the evidence against him; all the government needed was for a judge to agree that freeing him would put the nation's security at risk. It took 43 months for the INS to concede that neither Abdel-Rahman nor Ahmed caused the Cairo incident and that Ahmed wasn't a terrorist.
When the government claims that a case involves a national-security risk, its power increases substantially. Investigators can order a search or wiretap without notifying the subjects of the search; prosecutors can restrict the discovery of evidence, impede defense lawyers' access to their clients or require that an entire jury have security clearance. In illegal-immigrant cases like Ahmed's, the government can keep its case secret, indefinitely, in the name of protecting intelligence sources. There have been at least 20 secret-evidence cases brought since 1996, nearly all against Arab Muslims.
Congress and the Supreme Court have given prosecutors such powers in order to protect against terrorists and spies. But too often, argues Jonathan Turley, national security expert and law professor at George Washington University, prosecutors use national security to make their jobs easier, not to make the country safer. "The government routinely makes outlandish allegations about national security," he says, "to force plea agreements."
The one check in the system is judges, who have the power to reject the prosecutorial claims but tend not to use it. David Cole, law professor at Georgetown University, explains, "When the government claims the fate of the U.S. is at stake, judges tend to believe that. How is a judge supposed to assess on his own whether a national-security threat exists?"
When the Justice Department was criticized for its handling of the Lee case, Assistant U.S. Attorney George Stamboulidis said it was Lee who "held the keys to his jail cell." But in cases like these, it's the prosecution that's in charge of the locks.
--By Andrew Goldstein. With reporting by Edward Barnes/New York